Appendix — Hetrick v. Village of Lindsey

15

APPENDIX.

CONSTITUTION OF THE UNITED STATES.

ARTICLE XIV.

Section L

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

REVISED STATUTES OF OHIO.

§ 3812. Special assessments, how made.—LEacli

municipal corporation shall have special power to levy

and collect special assessments, to be exercised in the

manner provided by law. The council of any municipal

corporation may assess upon the abutting, adjacent and

contiguous or other specially benefited lots or lands in the

corporation, any part of the entire cost and expense con-

nected with the improvement of any street, alley, dock,

wharf, pier, publie road, or place by grading, draining,

curbing, paving, repaving, repairing, constructing side-

walks, piers, wharves, docks, retaining walls, sewers,

drains, watercourses, water mains or laying of water

pipe and any part of the cost of lighting, sprinkling,

sweeping, cleaning or planting shade trees thereupon, and

any part of the cost and expense connected with or made

for changing the channel of, or narrowing, widening,

dredging, deepening or improving any stream, or water-

BESSA ERIE NARRATE GU SRE Sa al

Sree az ise a 053

16

course, and for constructing or improving any levee or

levees, or boulevards thereon, or along or about the

same, together with any retaining wall, or riprap pro-

tection, bulkhead, culverts, approaches, flood gates, or

water ways, or drains incidental thereto, or making any

other improvement of any river front or lake front

(whether such river front or lake front be privately or

publicly owned), which the council may declare conducive

to the public health, convenience or welfare, by any of

the following methods:

First: By a percentage of the tax value of the

property assessed.

Second: In proportion to the benefits which may

result from the improvement, or

Third: By the foot front of the property bounding

and abutting upon the improvement. (107 v. 629; 101 v.

134; 96 v. 26, §9; 97 v. 98, §50.)

§ 3814. Resolution of necessity— When it is deemed

necessary by municipality to make a publie improve-

ment to be paid for in whole or in part by ‘special assess-

ments, council shall declare the necessity thereof by reso-

lution, three-fourths of the members elected thereto con-

curring, except as otherwise herein provided. Such reso-

lution shall be published as other resolutions, but shall

take effect upon its first publication. (97 v. 121, $51.)

§ 3815. Determination of nature of improvement;

method of assessment and payment.—Such resolution

shall determine the general nature of the improvement,

what shall be the grade of the street, alley, or other pub-

lic place to be improved, the grade or elevation of the

curbs, and shall approve the plans, specifications, esti-

mates and profiles for the proposed improvement. In

such resolution council shall also determine the method

of the assessment, the mode of payment, and whether or

kev

17

not bonds shall be issued in anticipation of the collection

thereof. Assessments for any improvement may be pay-

able in one to twenty installments at such time as council

prescribes. (107 v. 151; 97 v. 121, $51.)

§ 3816. Plans, specifications, estimates and profiles

to be prepared and filed—At the time of the passage of

such resolution, council shall have on file in the office of

the director of public service in cities, and the clerk in

villages, plans, specifications, estimates and profiles of

the proposed improvement, showing the proposed grade

of the street and improvement after completion, with ref-

erence to the property abutting thereon, which plans,

specifications, estimates and profiles shall be open to the

inspection of all persons interested. (97 v. 121, $51.)

§ 3817. Bonds and interest thereon.—When bonds

are issued in anticipation of the collection of the assess-

ment, the interest thereon shall be treated as part of the

cost of the improvement for which assessment may be

made. If such assessment or any installment thereof is

not paid when due, it shall bear interest until the pay-

ment thereof at the same rate as the bonds issued in

anticipation of the collection thereof, and the county

auditor shall annually place upon the tax duplicate the

penalty and interest as therein provided. (97 v. 121,

§51.)

§ 3818. Notice, how served.—A notice of the passage

of such resolution shall be served by the clerk of coun-

cil, or anassistant, upon the owner of each piece of prop-

erty to be assessed, in the manner provided by law for

the service of summons in civil actions. If any such own-

ers or persons are not residents of the county, or if it

appears by the return in any case of the notice, that

such owner cannot be found, the notice shall be published

at least twice in a newspaper of general circulation with-

18

in the corporation. Whether by service or publication,

such notice shall be completed at least twenty days bhe-

fore the improvement is made or the assessment levied,

and the return of the officer or person serving the notice,

or a certified copy of the return shall be prima facie evi-

dence of the service of the notice as herein required.

(97 v. 122, $52.)

§ 3819. Limitation of assessments.—The council

shall limit all assessments to the special benefits con-

ferred upon the property assessed, and in no case shall

there be levied upon any lot or parcel or land in the cor-

poration any assessment or assessments for any or all

purposes, within a period of five years, to exceed thirty-

three and one-third per cent. of the actual value thereof

after improvement is made. Assessments levied for the

construction of main sewers shall not exceed the sum

that in the opinion of council would be required to con-

struct an ordinary street sewer or drain of sufficient

capacity to drain or sewer the lots or lands to be assessed

for such improvement, nor shall any lots or lands be as-

sessed that do not need local drainage or which are pro-

vided therewith. (97 v. 126, §53.)

§ 3820. Municipality to pay portion of cost of im-

provement.—The corporation shall pay such part of the

cost and expense of improvements for which special as-

sessments are levied as council deems just, which part

shall be not less than one fiftieth of all such cost and ex-

pense, and in addition thereto, the corporation shall pay

the cost of intersections. (97 v. 126, §53.)

§ 3825. Ordinance for improvement, what to con-

tain.—If the council decides to proceed with the improve-

ment, an ordinance for the purpose shall be passed. Such

ordinance shall set forth specifically the lots and lands

19

| to be assessed for the improvement, shall contain a state-

ment of the general nature of the improvement, the char-

acter of the materials which may be bid upon therefor,

' the mode of payment therefor, a reference to the resolu-

tion therefore passed for such improvement with date

of its passage, and a statement of the intention of council

to proceed therewith in accordance with such resolution

and in accordance with the plans, specifications, esti-

mates and profiles provided for such improvement. (97

v. 122, $55.)

§3834. When certain special assessments deemed

valid and binding—When special assessments are made

upon property for the construction of an improvement,

and several kinds of material have been named in the

ordinance, or ordinances, providing therefor, and on

which bids have been received for the construction of

such improvements with any and all of such materials,

such assessments shall be valid and binding assessments

upon the property so assessed. In the construction of

sewers, excepting main or district sewers, notice of the |

passage of the resolution therefor shall be made in the |

manner hereinbefore provided. (87 v. 123, §60.)

§3835. Council not to proceed with improvement

without concurrence of three-fourths; exception.—No

public improvement, the cost or part of cost of which is

to be specially assessed on the owners of property, shall

be made without the concurrence of three-fourths of the

members elected to council, unless the owners of a ma-

jority of the foot frontage to be assessed, petition in

writing therefor, in which event the council, a majority

of the members elected thereto concurring, may proceed

with the improvement in the manner herein provided.

(96 v. 42, $61.)

Bahar eyo 48 “ .

. 1 TE SEIS SHES ING EOE aa

ee NENA a

IN THE

Supreme Court of the United States

No. 29,425.

Term No. 231.

October Term, 1923.

Wes.ey HETRICcK,

Plaintiff in Error.

vs.

THE VILLAGE OF LINDSEY OHIO, ET. AL.

’ ’ ’

Defendants in Error.

Error to the Supreme Court of the State of Ohio.

BRIEF ON BEHALF OF DEFENDANT IN ERROR,

THE VILLAGE OF LINDSEY, OHIO.

W. J. Mean, Fremont, Ohio,

. Attorney for Defendant in Error.

INDEX.

Page

Statement of Case..........--- eee eee eee ereeees 1

RPMOMOE cei cea tee cle scneescaessccaesaderes 6

SES eee a rat ee eee eee PEPE ee ee ie. 7

Owner’s Right to a Hearing.......--..---.+++++-+: 9

Limitations Provided.............-+ee scene eeeees 12

Not a Taking of Property.........-.----++++eeeees 13

CASES CITED

Adler vs. Whitbeck, 44 O. S. 539, 571........------- 12

Ballard vs. Hunter, 204 U. S. 242, 255; 51 L. Ed. 462,

Ae ee eee ee A Py peer ny Lek € 12

Cincinnati vs. Sherike, 47 O. S. 217..........-..-+5: 8

City of Canton vs. Wagner, 8S = ears. 8

City of Dayton vs. Baumann, 66 O. S. 379, 383. ...... 13

Conservancy District vs. Ryan, 104 i Spee 13

County Commissioners vs. Gates, ae. eB,» 13

Davidson vs. Board of Administrators, 96 U. S. 97,

Book 24, page G16............- cece cece teen eee 11

Ernst vs. Kunkle, 5 O. S. 520, 524.............-.---: 13

French vs. Barber Asphalt Paving Co., 181 U.S. 324;

TE 2. Ge rea ona Err ear were ray 9

Green vs. Cincinnati, 4 O. C. D. 573, 574. ........--- 9-10

Griswold vs. Pelton, Treas., 34 O. S. 482.........--. 11

Hill vs. Higdon, 5 O. S. 248..........2 220222 e ee 13

Hodge vs. Muscatine County, et. al., 196 U.S. 275, 281,

989: 49 L. Ed. 477, 481, SR ae edie oe 12

Joyce vs. Barron, Treas., 67 O. S. 264..........-. 8-9-10

King vs. Portland, 184 U. 8. 61, 69, 70; 46 L. Ed. 431,

MR at nd teas wa Rad Kore Ka Meee eA 12

MeMillin vs. Anderson, 96 “ 5. 37, Book 335........ 11

Meyer vs. Beck, et. al., 87 0.8 Ps Se kG Fens eo 6

Moore vs. Given, 39 0. S. 661 = ITNT cage, oa Som Ete 8

Musser vs. Adair, 55 O. S. 466, 474..............4-. 12

Paulson vs. City of Portland, 149 U. S. 37, Book 37

WN MEE ia 5 dna sa va an os 2 as hac eee Renato ee 9-11

Inpex—Conr’p.

Page

Railroad Company vs. Connelly, 10 0. S. 160........ 13

Reeves vs. Treasurer, 8 O. S. 333................... 13

Security Trust Co. vs. City of Lexington, 203 U. S. 324

A ON, hcg a kee 13

Schroeder vs. Overman, Clerk, 61 0.S.1............ 1

"wi vs. Merchant, 125 U. S. 345, book 31, page

fakmuwan one RUS, Se ie eal

State, ex. rel. vs. Sockman, 84 U. S. 447 ............ 6

State, ex. rel., vs. Union Central Life Insurance Co.,

vp ode Moe eon ET Oe ea 6

Walsh vs. Barron, Treas., 61 0.8. 15...............

Walston vs. Nevin, et. al., 128 U. S. 578, book 32,

a ao inh wis Sida Ee KU eos Ooo haba ees ok ose i, 11

Walsh, et. al. vs. Sims, Treas., 65 0. S. 211......... 11

_

-™

IN THE

Supreme Court of the United States

No. 29,425.

Term No. 231.

October Term, 1923.

Westey Herrick,

Plaintiff in Error.

vs.

Tue Vitiace or Lrnpsgy, OHIO, ET. AL.,

Defendants in Error.

BRIEF AND ARGUMENT FOR DEFENDANTS IN

ERROR.

STATEMENT OF THE CASE.

Plaintiff in error was the plaintiff in the action

brought in the Court of Common Pleas of Sandusky

County, Ohio, on June 8th, 1921, to enjoin the collection

of the special assessments assessed by the Council of

the Village of Lindsey, Ohio, against the property of

—— ———— a

plaintiff, to-wit, $199.65 against Lot No. 175, and $840.95

against Lot. No. 176 in said village, for the improvement

of Railroad Street in said village, plaintiff claiming dif-

ferent irregularities and also defects in the law under

which said improvement and assessments were made.

(Record pages 6-7 for petition).

To this petition said village answered denying all

irregularities and defects, and setting forth plaintiff's

knowledge of and participation in the work of said im-

provement. (Record pages 8-9).

In the hearing of said case in said court the only

grounds claimed by plaintiff against the validity of said

assessment were,

1. That said assessment exceeded the benefits to

said lots or either of them,

2. That said assessment was in excess of the limit

allowed by law to be levied upon property for local im-

provement, and

3. That the provisions of the General Code of

Ohio are unconstitutional and void for the reason that

they do not provide for notice to be given to the owner

of property to be assessed and an opportunity to be

heard before the tax is levied, and are therefore repug.

nant to and in conflict with Article 1, Section 16, and

Article 1, Section 19 of the Constitution of the State of

Ohio, and for the same reason in conflict with and re-

pugnant to Section 1 of the Fourteenth Amendment te

the Consttiution of the United States, in that they per

mit the taking of property without due process of law

In the hearing of said case a large amount of evi-

dence was heard by said Common Pleas Court especially

on the questions of benefits and values, and on Jan. 26th.

1922, said court sustained said assessment in its entirety

and dismissed plaintiffs petition. (Record page 10).

of

P

Plaintiff then appealed the case to the Court of Ap-

peals of said county, and the case was fully heard by

that court, a large amount of evidence being presented

at this hearing, which court on May 9th, 1922, found

the value of said lots after the completion of the im-

provement to be $2,600.00 and that they were especially

benefited to the extent of one-third of this value, and re-

duced said assessment from $1,040.60 on both lots to

$866.67, and decreed that the amount of $866.67 was

legally assessed against said property, and held against

the claim of plaintiff that the provisions of the Genera]

Code of Ohio relating to special assessments for street

improvements are unconstitutional. (Record pages 2-3).

Plaintiff's motion for a new trial was overruled,

(Record page 3), and on plaintiff’s request a finding of

facts was made by said court (Record pages 3-4-5), and

filed July 10th, 1922.

Said improvement is a brick pavement upon a con-

crete foundation and is 1,082 feet in length.

At and before the commencement of the proceedings

to improve said street said lots were platted lots. (Fact

11).

Said lots adjoin, each abuts said improvement, and

a saw mill property is located upon both said lots and a

saw mill business transacted thereon. (Fact 12).

The assessment was made by the foot front of the

property bounding and abutting upon the improvement,

and assessments were made of $199.65 against Lot 175

and $840.95 against Lot 176.

Notice of the passage of the resolution of necessity

for the improvement was served by the clerk in writing

on the plaintiff personally on May 10th, 1920, which, with

reference to the other proceedings, was at a proper time.

(Faet 4).

4

Plaintiff was, in fact, served with a complete copy

of the resolution.

Plaintiff in error had full knowledge of the work

as it progressed and made no objections thereto. (Fact

18).

Plaintiff with his counsel appeared before and con-

sulted with the Council as to the manner of the construe-

tien of the improvement and thereby caused it to be con-

structed in front of his property in the manner desired

by him. (Fact 20).

The Council acted in good faith. (Fact 24).

The Council found the several lots to be especially

benefited to the extent of the levy made against them.

(Fact 15).

Plaintiff filed no claim for damages. (Fact 16).

Plaintiff never requested a hearing before the Coun.

cil in said matter. (Fact 17).

All meetings of the Council were open and held at

the usual meeting place. (Fact 23).

Said improvement was completed about December

‘Ist, 1920. (Fact 19).

“All resolutions and ordinances required by the

statute were passed by the Council and publications and

service of the same was made and all notices were given

and all things required by the statutes to be done were

properly done by the Council and officers of said village

and all proceedings relative to said improvements were

regular and in accordance with the statutes, if the mail-

ing of the notice of the assessment to plaintiff was in ac-

cordance with the statutes, and this court finds that such

mailing was in accordance with the statute.’’ (Fact 13).

Other findings of fact, 24 in all, were made by the

court.

To said judgment of said Court of Appeals said

plaintiff prosecuted error and filed his petition in error

5

in the Supreme Court of Ohio, as of right, on the 17th

day of July, 1922. (Record page 18).

Petition in error in the Supreme Court of Ohio ap-

pears (Record page 1).

On October 23rd, 1922, defendants in error filed in

the Supreme Court of Ohio, their motion to dismiss said

petition in error, on the ground that same was filed in

said court without leave first granted, plaintiff in error

claiming that the case involves a question under the

Constitution of the United States, in that the statutes

of the State of Ohio relating to special assessments for

street improvements are unconstitutional in that they

are contrary to the Fourteenth Amendment to the Con-

stitution of the United States, when in fact these statutes

have so long been held constitutional by the courts of

the state and have so long been accepted and followed

by the practice of the state as constitutional, that their

constitutionality can no longer be questioned, and said

petition in error should not be filed as a matter of right

and is on file without authority or right. (Record pages

10-11).

A hearing was had on said motion and on December

5, 1922, said court sustained said motion and dismissed

said petition in error. (Record page 11).

On February 7th, 1923, plaintiff in error filed his

petition for a writ of error (Record pages 12-13), and on

said date same was allowed by Hon. C. T. Marshall,

chief justice of the Supreme Court of the State of Ohio.

(Record pages 13-15).

The questions that said assessment exceeded the

benefits to said property and that it exceeded one-third

of the value of the property after the improvement was

completed were both raised in the Common Pleas Court

and the Court of Appeals and determined as hereinbe-

fore stated, but neither of them were raised in the Su-

preme Court and probably could not be.

State, ex. rel., vs. Sockman, 84 0. S. 477;

State, ex. rel., vs. The Union Central Life

Insurance Co., 84 O. S. 459;

Meyer vs. Beck, et. al., 87 O. S. 182, 186.

There was but one point of contention before the

Supreme Court of Ohio, to-wit, that the statutes of Ohio

relating to special assessments for street improvements

are contrary to the Fourteenth Amendment to the Con-

stitution of the United States, in that they fail to pro-

vide for notice to and hearing of the owner of the prop-

erty assessed, and thereby permit such owner to be de-

prived of his property without due process of law, and

this was the only question plaintiff in error attempted to

bring before said court, and he was there heard both on

brief and in oral argument, and this is the only question

before or that can now be before this court in this case.

ARGUMENT.

In the ten assignments of error (Record pages 14-

15), there is but one claim, the unconstitutionality of the

special assessment statutes of Ohio, and this claim is

made solely for the reason that said statutes do not pro-

vide for a proper notice, and do not provide for a hearing

or opportunity to be heard with reference to a special

assessment before it becomes a finality as required by

the due process of law clause of the Fourteenth Amend.

ment to the Constitution of the United States. (Sixth

assignment, Record page 15). The other assignments

are but repetitions of this.

Notice.

Notice to the owner of property to be assessed is

| provided for in the statutes.

‘©When it is deemed necessary by a municipality

to make a public improvement to be paid for in

whole or in part by special assessments, Council

shall declare the necessity thereof by resolution

* * * Such resolution shall be published as

other resolutions, but shall take effect upon its

first publication.’’ Section 3814, General Code

of Ohio.

Section 3815 G. C. O. provides what shall be deter-

mined in said resolution.

‘““4 notice of the passage of such resolution

shall be served by the clerk of Council, or an as-

sistant, wpon the owner of each piece of property

to be assessed, in the manner provided by law for

the service of summons in civil actions. If any

such owners or persons are not residents of the

county or if it appears by the return in any case

of the notice that such owner cannot be found,

the notice shall be published at least twice in a

newspaper of general circulation within the cor-

poration. Whether by service or publication such

notice shall be completed at least twenty days be-

fore the improvement is made or the assessment

levied, and the return of the officer of person serv-

ing the notice, or a certified copy of the return

shall be prima facie evidence of the service of the

notice as herein required.’’ Section 3818 G. C. O.

‘At the expiration of the time limited for so

filing claims for damages, the Council shall deter-

mine whether it will proceed with the proposed

improvement” * * * Section 3824 G. C. O.

‘Tf the Council decides to proceed with the im-

provement, an ordinance for the purpose shall be

sed. Such ordinance shall set forth specif-

ically the lots and lands to be assessed for the im-

provement, shall contain a statement of the gen-

eral nature of the improvement, the character of

the materials which may be bid upon therefor, the

8

mode of payment therefor, a reference to the reso-

lution therefore passed for such improvement with

date of its passage, and a statement of the inten-

tion of Council to proceed therewith in accordance

with such resolution, and in accordance with the

plans, specifications, estimates and profiles pro-

vided for such improvement.’’ Section 3825 G,

C. O

“ * * * Ordinances of a general nature,

or providing for improvements shall be published

as hereinafter provided before going into opera-

tion * * * % Section 4227 G. C. O.

Section 3881 G. C. O. provides for assessment and

issue of bonds, and the latter part of said section is as

follows:

*“‘Any person so assessed shall have the option

of paying his proportion of the assessment in cash

within the period of thirty days from the date of

levy thereof upon due notice being given.”’

Thus in addition to the requirement of publication

of the resolution and ordinances, service of notice by

Section 3818, and notice by Section 3881 is required, and

this latter section does not provide the kind or manner

of notice, so

‘Where a statute requires notice of a proceed-

ing, but is silent concerning its form or manner

of service, actual notice will alone satisfy such re-

quirement.’’ Moore vs. Given, 39 O. S. 661, Syl. 2.

The notice required by Section 3818 was served

strictly in conformity with the statute, and when so done

this notice has been held by the Supreme Court of Ohio

to be sufficient to give the Council jurisdiction and au-

thority to assess.

City of Canton vs. Wagner, 54 O. S. 329;

Joyce vs. Barron, Treas., 67 O. S. 264;

Cincinnati vs. Sherike, 47 O. S. 217.

9

Also the property owner is charged with notice of

the proceedings after notice of the passage of the reso-

lution of necessity, and with notice of the publications.

The Ohio Supreme Court has held the notice of Sec-

tion 3818 sufficient to give the property owner the right

to approach the Council and be heard with respect to the

character of the pavement to be laid, as well as to file

nis claim for damages.

Joyce vs. Barron, Treas., 67 O. S. 264, 269;

Also, Green vs. Cincinnati, 4 0. C. D. 573,

574.

It has been held that where a statute does not pro-

vide for notice to owners of property to be assessed,

such failure does not render the statute unconstitutional

or void, also

That notice by publication is sufficient for assess-

ment of tax for construction of a sewer.

Paulsen vs. Portland, 149 U. 8S. 29, Book

37, page 640;

Security Trust Co., ete., vs. City of Lexing-

ton, 203 U. S. 324, 51 L. Ed. 204.

“The Legislature of a state may provide for

the apportionment of the cost of a street pavement

upon the abutting lots, according to frontage,

without any preliminary hearing as to benefits,

and this will not constitute a taking without due

process of law.”’

French vs. Barber Asphalt Paving Co., 181

U. S. 324, 45 L. Ed. 879.

Owner’s Right to Hearing.

Council meetings are open to the public. Section

4239 G. C. O.

10

The notice provided for in Section 3818 gives the

right to approach the Council.

Joyce vs. Barron, Treas., 67 O. S. 264, 269;

Green vs. Cincinnati, 4 O. C. D., 573, 574.

Plaintiff with his counsel was heard by the Council

as to the manner of improvement. (Fact 20).

Sections 3827, 3828, 3830, 3831 and 3832 provide for

the consideration and determination of the owner’s dam-

ages, if any.

‘‘Before adopting an assessment made as pro-

vided in this chapter, the Council shall publish no-

tice for three weeks consecutively, in a newspaper

of general circulation in the corporation, that such

assessment has been made, and that it is on file in

the office of the clerk for the inspection and ex-

amination of persons interested therein.’’ Sec-

tion 3895 G. C. O.

“If any person objects to an assessment, he

shall file his objections, in writing, with the clerk,

within two weeks after the expiration of such no.

tice, and thereupon the Council shall appoint three

disinterested freeholders of the corporation to act

as an equalizing board.’’ Section 3848 G. C. 0.

Section 3850 provides for a hearing by the Board of

Equalization of all objections made to assessments and

authorizes that board to make such finding and order as

shall be required by the facts.

“‘Common pleas and superior courts may enjoin

the illegal levy or collection of taxes and assess-

ments, and entertain actions to recover them back

when collected, without regard to the amount

thereof, but no recovery shall be had unless the

action be brought within one year after the taxes

or assessments are collected.’’ Section 12075 G.

C. O.

Plaintiff under this section has had two full hear-

ings upon the merits of the assessments, one in the Com-

mon Pleas Court and one in the Court of Appeals, and

ll

this in addition to the consideration and determination

by the village Council with his right to there appear,

had he so desired, and the assessments did not become a

finality until the determination by the Court of Appeals

which court is authorized under the laws of Ohio to, in

such cases, determine the amount properly assessable.

* * * “The court * * * may render

judgment for the amount properly chargeable

against said defendant or on such lot or land, but

in such cases the court shall make such order for

the payment of costs as it may deem equitable or

proper.’’? Section 3901 G. C. O.

In a suit brought by a treasurer to collect a

street assessment, and a judicial determination is

made that the assessment substantially exceeds the

benefits, the trial court has jurisdiction, upon

proper pleadings, to go forward and determine

what amount should be assessed.

Walsh, et. al., vs. Sims, Treas., et al., 65

O. S. 211;

}riswold vs. Pelton, Treas., 34 O. S. 482.

Whenever by the laws of a state or any state au-

thority a tax is imposed upon property for the public

use, and provides for a mode of contesting the charge

thus imposed in the ordinary courts of justice, the owner

of such property has due process of law.

Walston vs. Nevin, et al., 128 U. S. 578,

Book 32, page 544;

MeMillin vs. Anderson, 95 U. S. 37, Book

24, page 335;

Davidson vs. Board of Administrators, etc.,

96 U. S. 97, Book 24, page 616;

Paulson vs. City of Portland, 149 U. S. 37,

Book 37, page 637;

Spencer vs. Merchant, 125 U. S. 345, Book

31, page 768;

King vs. Mullins, 171 U. S. 405, Book 43,

page 214;

12

King vs. Portland, 184 U. 8. 61, 69-70, 46

L. Ed. 431, 436;

Adler vs. Whitbeck, 44 O. S. 539, 571;

Musser vs. Adair, 55 O. S. 466, 474;

Hodge vs. Muscatine County, et. al., 196 U.

S. 275, 281-282, 49 L. Ed. 477, 481-482:

Security Trust, Ete., Co., vs. City of Lex-

ington, 203 U. S. 323, 51 L. Ed. 204, 208;

Ballard vs. Hunter, 204 U. S. 242, 255, 51 L.

Ed. 462, 472.

Limitations Provided.

Section 6 of Article 13 of the Constitution of Ohio

provides that the General Aseembly shall restrict

municipal corporations in assessments, etc., so as to pre-

vent the abuse of such power.

Section 3820 G. C. O. requires the corporation to

pay such part of the expense of improvements for which

special assessments are levied as to the Council seems

just, but this part shall not be less than 1/50 of all such

cost and expense and in addition the cost of intersec-

tions.

“The Council shal] limit all assessments to the

special benefits conferred upon the property as-

sessed, and in no case shall there be levied upon

any lot or parcel of land in the corporation any

assessment or assessments for any or all purposes,

within a period of five years, to exceed thirty-

three and one-third per cent. of the actual value

thereof after the improvement is made. * * * ”

Section 3819 G. C. O.

“ * * * but the proceedings shall be

strictly construed in favor of the owner of the

property assessed or injured, as to the limitations

on assessment of private property, and compen-

sation for damages sustained.’’ Section 3911 G.

C. O.

13

This section refers to improvements of any kind.

Not a Taking of Property.

Plaintiff has and probably will here contend that

this was a taking of his property. This cannot be until

the assessment exceeds the benefits. There were no dam-

ages to his property. The determination of the Court

of Appeals of the benefits is final.

There is no complaint that this assessment is not

uniform or ratable.

A ratable assessment of the property to the extent

of the special benefits, violates no constitutional right of

the owner, and is just and proper.

Walsh vs. Barron, Treas., 61 O. S., 15.

The special assessment statutes of Ohio, as often as

the question has been raised, have been held not to violate

the Constitution of Ohio.

Hill vs. Higdon, 5 O. S. 243;

Ernst vs. Kunkle, 5 O. S. 520;

Reeves vs. Treasurer, 8 O. S. 333;

Walsh vs. Barron, Treas., 61 O. S. 15;

City of Dayton vs. Bauman, 66 0. S. 379,

393 ;

County Commissioners vs. Gates, 83 O. Ss.

31-32;

Railroad Company vs. Connelly, 10 0. 8.

160;

Conservancy District vs. Ryan, 104 O. S. 85,

and also that they do not violate the Constitution of the

United States.

Ernst vs. Kunkle, 5 O. S. 524;

Schroeder vs. Overman, Clerk, ete., 61 O.

S. 1.

14

‘*All courts shall be open and every person, for

an injury done him in his land, goods, person, or

reputation, shall have remedy by due course of

law, and shall have justice administered without

denial or delay. Suits may be brought against the

state, in such courts and in such manner, as may

be provided by law.’

Article 1, Section 16, Ohio Constitution,

The General Code of Ohio, Section 3812, specifies

the purposes, the property upon which and the method

by which special assessments may be levied by municipal

corporations. It operates alike upon all persons and

property similarly situated, and provides for notice to

the owners of the property to be assessed and oppor-

tunity for hearing before the municipal authorities, and

also for a proceeding in and full hearing by the courts

of the state, which courts are empowered to correct or

set aside any wrongful or excessive assessment, or part

thereof. Plaintiff has had the advantage of all these

safeguards, and availed himself of the privilege, If

this be not due process of law, how ean due process of

law be prescribed?

That this assessment was made strictly in accord-

ance with the laws and Constitution of Ohio is not dis-

puted. The Ohio courts have so found. That such as-

sessments do not violate the Constitution of the United

States has been for many years held as settled law by

‘he Supreme Court of the United States. To cite the

eases determined by the supreme courts of the differ.

ent states and of the Supreme Court of the United States

in which such assessments have been maintained would

require many pages.

It seems that a brief examination of these authorities

would convince plaintiff in error that his claim here is

untenable, and while any constitutional question with

15

proper grounds for presentation would not be frivolous,

yet it is frivolous to present an untenable claim against

long settled principles.

It also seems that this question would not need fur-

ther argument and ought to be affirmed, and also that

this court might well dismiss the petition in error as an

unwarranted appeal to the court.

Respectfully submitted,

W. J. Mean,

Altorncy for the Village of Lindsey, Ohio.